FOIA Update: Significant New Decisions

January 1, 1984

FOIA Update Vol. V, No. 2 1984

Significant New Decisions

Williams v. FBI, 730 F.2d 882 (2d Cir. 1984).

Relying heavily on the legislative history of the FOIA, the U.S. Court of Appeals for the Second Circuit has joined the First Circuit in Irons v. Bell, 596 F.2d 468 (1st Cir. 1979), and the Eighth Circuit in Kuehnert v. FBI, 620 F.2d 662 (8th Cir. 1980), in holding that investigatory records of the Federal Bureau of Investigation per se meet the threshold requirement of Exemption 7. The lower court in this case had refused to accord Exemption 7 protection to investigatory records compiled during the course of the FBI's investigation of the Coalition for Defense of the Panthers (a group involved in fund raising and public relations on behalf of the Black Panther Party), based upon its conclusion that the FBI could not have reasonably considered the Coalition to pose any threat of potential criminal activity. The Second Circuit rejected this analysis, however, holding that the legislative history of the 1974 FOIA Amendments showed that Congress did not intend to alter then-existing case law treating the phrase "compiled for law enforcement purposes" as a broad descriptive classification encompassing all records of federal criminal law enforcement agencies such as the FBI. Rather, the court of appeals declared, Congress intended to provide "absolute protection" to information falling within Exemption 7 subparts (A)-(F), in order to prevent impairment of the "efficient operation of federal law enforcement agencies." The Second Circuit stressed that a contrary holding would "substantially impair law enforcement" because it would not provide an absolute assurance to persons desiring confidentiality as a condition of cooperating with the government, leading to effects that "would be exactly contrary to the result Congress wanted to achieve."

In an aberrational decision rejecting the traditional legal principle that an individual's privacy right is a purely personal interest which expires at death, a divided panel of the U.S. Court of Appeals for the Sixth Circuit has upheld the nondisclosure of a deceased FBI informant's file on the basis of Exemption 7(C) as well as Exemption 7(D). Noting that these two exemptions logically work "in conjunction" with one another, two judges on the panel preferred to rest their decision on both grounds, notwithstanding the death of the individual in question. At the same time, they additionally rejected the plaintiff's argument that the decedent's public testimony at trial precluded Exemption 7(D) protection for his file, declaring: "If every citizen who volunteers information on criminal conduct, or testifies about it, were to thereby open his personal file to the public, convincing citizens to come forward and testify would be far more difficult that it already is." In a separate opinion, one judge emphatically disagreed with the notion that personal privacy rights can survive an individual's demise, reiterating the majority legal rule that "[a] dead man retains no right to privacy after his death." Instead, he found the information in question to be plainly protected under Exemption 7(D) alone.

In a "reverse" FOIA suit brought by the successful bidder on a government health services management contract, U.S. District Court Judge Thomas Penfield Jackson refused to block the release of certain information contained in the winning bid despite the submitter's argument that disclosure would cause it competitive harm. The submitter of the information filed suit when an unsuccessful bidder sought its winning contract proposal under the FOIA. Although the agency agreed to withhold sensitive information contained in the bid proposal, it decided to release the qualifications of key employees and general descriptions of certain routine operational matters (e.g., employee orientation and site visitation practices). Judge Jackson upheld such disclosure, finding that it would reveal only "mundane" information and that it would not cause competitive harm. Although recognizing that "the more competitors know about a business concern the more vulnerable to effective competition it becomes," he emphasized that "the integrity of the public procurement process is best served by conducting as much of it as possible in public view." He also pointedly cautioned competitors to expect disclosure of more information when they "do business with the government" than when they enter into "purely private" agreements.

In a square reversal of a troubling lower court decision, the U.S. Court of Appeals for the Ninth Circuit has approved the withholding under Exemption 6 of the names and addresses of individuals who applied for permits to ride on rafts down Oregon's Rogue River. Although the district court had found a public benefit in releasing the requested list to the owner of a commercial establishment on the river for solicitation purposes (see FOIA Update, Summer 1983, at 4), the court of appeals strongly disagreed. Pointing to the seminal "mailing list" case under the FOIA -- Wine Hobby USA, Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974) -- the Ninth Circuit said: "We agree with the Third Circuit that commercial interest should not weigh in favor of mandating disclosure of a name and address list." It also observed that the lower court had apparently "ignore[d] the possibility that some [persons on the list] would be irritated rather than enlightened by unwanted solicitations." Moreover, it added, there would be nothing to prevent other commercial advertisers from obtaining the list, "subjecting the applicants to an unwanted barrage of mailings and personal solicitations." Finding "more than a minimal privacy interest" implicated in such a list, the Ninth Circuit readily concluded that its disclosure would be "clearly unwarranted."

In another mailing list-type case, the U.S. Court of Appeals for the Sixth Circuit has upheld the application of Exemption 6 to the home addresses of VA loan recipients in the Cleveland area. Heights Community Congress (HCC), a "watchdog" organization committed to investigating "racial steering" in a particular Cleveland neighborhood, sought disclosure of data regarding all VA loans in the area to facilitate its investigation. The Sixth Circuit agreed with the VA, however, that disclosure of such information as the home addresses of VA loan recipients would be "clearly unwarranted" within the meaning of Exemption 6. The court of appeals commenced its analysis with the ancient "maxim that 'a man's home is his castle.'" While it found that HCC's efforts unquestionably embodied a legitimate public interest, it also noted that "assertions of a public interest in merely 'monitoring' the operation of a federal program, without more, have not been viewed favorably by the courts." Further, it emphasized that disclosure "would subject a veteran, who is himself not suspected of any wrongdoing, to involuntary personal involvement in HCC's investigation." Such an outcome, which the court of appeals foresaw could easily include HCC representatives "interrogating the individual buyers of [each] identified property," was viewed by it as contrary to "the basic right in this nation simply to be left alone." The Sixth Circuit thus found itself "accordingly constrained to conclude" that the balance was properly struck in favor of nondisclosure.

In a lengthy contribution to the growing body of FOIA law endeavoring to define the term "agency record," the U.S. Court of Appeals for the First Circuit has ruled that a presentence report -- a document that is "jointly possessed by a FOIA-controlled agency (the Parole Commission)" and "a FOIA-exempt entity (the courts)" -- is not an agency record subject to the FOIA. The First Circuit surveyed the case law in which other courts (particularly the D.C. Circuit) have focused on the degree of control exercised by the agency and the non-agency, and it concluded that "courts have not adhered to a single variant of the control test for determining whether a document is an agency record for FOIA purposes." It therefore rejected as dispositive factors in its analysis both the standing court order retaining control of the presentence report, as well as the "weight of authority," and it looked instead to congressional intent as the "key factor" in resolving the status of the presentence report before it. In deciding that the document was not an "agency record," the First Circuit focused particularly on the fact that Congress had denied the Parole Commission the discretion to permit a prisoner to retain a copy of his presentence report, while it had expressly granted such discretion to the courts. Finally, the court of appeals observed that FOIA access to presentence reports "would permit a quick end run around the court's discretion to refuse release of the report to the defendant after sentencing," and that, if the report were deemed to be an agency record, the uncertainty surrounding the scope of possible FOIA exemptions "might inhibit the free flow of information to probation officers who complete presentence reports."

Contrary conclusions on this issue have been reached this year by the D.C. Circuit and the Ninth Circuit Courts of Appeals, respectively, in Lykins v. United States Department of Justice, 725 F.2d 1455 (D.C. Cir. 1984), and Berry v. Department of Justice, 733 F.2d 1343 (9th Cir. 1984).

A unanimous panel of the U.S. Court of Appeals for the D.C. Circuit has approved the CIA's refusal to confirm or deny the existence of records concerning an alleged attempt by the United States to overthrow the Albanian government following World War II. The D.C. Circuit readily accepted the CIA's position that "an answer as to whether the files existed would be tantamount to declaring whether the mission occurred," which it found to be an abstract fact fully protectable under Exemption 1. In so doing, it flatly rejected the plaintiff's argument that his request should have been interpreted in such a way as to avoid that result, declaring that the request "made a specific inquiry about specific actions" and that "[t]he agency was bound to read it as drafted." The court of appeals also held that Exemption 3, in conjunction with Section 403 of the National Security Act of 1947, served as an additional ground for nondisclosure because any acknowledgment of such a mission, if it existed, "would reveal how the CIA has deployed its resources in the past, and would deter potential future sources from cooperating." Finally, the D.C. Circuit rebuffed the plaintiff's attempt to obtain the same information pursuant to a CIA regulation permitting access to classified information for historical research purposes, holding that any decision to grant such access under this regulation is made at the sole discretion of the CIA Director and "cannot be reviewed by this court."

Schlesinger v. CIA, Civil No. 82-1749 (D.D.C. Mar. 5, 1984).

In this case, the plaintiff sought access to the CIA's operational file on U.S. involvement in the 1954 Guatemalan coup. The CIA has officially acknowledged that it had some involvement in the coup; it has refused, however, to reveal any additional details despite the age of the documents and despite widespread unofficial disclosures and speculation as to their contents. Extending the principles articulated in Afshar v. Department of State, 702 F.2d 1125 (D.C. Cir. 1983), District Court Judge Thomas A. Flannery agreed with the CIA and held that only official disclosures -- "direct acknowledgments by an authoritative government source" -- can preclude an agency's otherwise proper Exemption 1 or Exemption 3 national security claim. Such official disclosures, Judge Flannery firmly stated, do not include CIA-cleared books or articles, publications authored by former agency officials, or even discussions contained in congressional reports. Once the term "official disclosure" is thus "properly defined," he reasoned, "any dispute over the extent of indirect, or unofficial disclosures," becomes immaterial to the agency's exemption claims. Judge Flannery also regarded as "inconsequential" the age of the documents at issue, noting that the CIA had recently reviewed them and had determined that harm could still flow from their release, a conclusion which he found particularly plausible in light of the fact that "[c]onditions in Central America are extremely sensitive today."